Bryan Stark (Pseudonym) v The Queen

[2015] HCASL 193

BRYAN STARK (PSEUDONYM)

v

THE QUEEN

[2015] HCASL 193
M16/2015

1. The applicant was convicted following trial in the County Court of Victoria (Judge Douglas) of sexual offences committed against a child under the age of 16 years.

2. The applicant appealed to the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Redlich JA and T Forrest AJA) against his conviction.  The appeal was dismissed on 1 March 2013. 

3. The applicant now seeks special leave to appeal from the orders of the Court of Appeal.  He requires a very substantial enlargement of time in which to file the application[1].  No satisfactory explanation for the delay of two years is provided. 

   [1]High Court Rules 2004 (Cth), r 41.02.1.

4. The applicant contends that the Court of Appeal erred in law in concluding that three previous representations made by the complainant were admissible pursuant to s 377 of the Criminal Procedure Act 2009 (Vic) ("the CPA") and s 66(2) of the Evidence Act 2008 (Vic) and in concluding that a submission made by the prosecutor in closing address did not breach the rule in Browne v Dunn (1893) 6 R 67.

5. Consideration of the possible application of s 66(2A) of the Evidence Act by the trial judge and the Court of Appeal was strictly unnecessary in circumstances in which each was satisfied that evidence of the previous representations was admissible under s 377 of the CPA. This provision applies in a criminal proceeding relating to a charge for a sexual offence if the complainant is under the age of 18 years and is available to give evidence. The burden of the applicant's complaint is with the conclusion that the evidence was "sufficiently probative" for the purposes of s 377. No question of principle is raised by this ground or by the second proposed ground, which challenges the Court of Appeal's conclusion that the requirements of fairness were met by the prosecutor's cross-examination of the applicant. If special leave to appeal were granted the appeal would have insufficient prospects of success.

6. The application is dismissed.

7. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application. 

V.M. Bell
4 November 2015 S.J. Gageler